requesting party and, depending on the circumstances and outcome, may also constitute a breach of the legal obligation to grant access under s 11A(3) of the FOI Act.
155 Five further observations about the content of the Cabinet Handbook should be made.
156 First, the Cabinet Handbook evidences a practice by which, on a change of Government, the documents are not taken into the custody of an individual, or of the political party or coalition of parties that form Government at the relevant time. Rather, it evidences a practice in which Cabinet documents are held in the care and control of the Secretary of the Department of the Prime Minister and Cabinet. A new series of Cabinet records is established for each successive Government. To the extent that GRA 38 refers to Cabinet documents being the "property" of the Government of the day, that may be understood a referring to confidentiality of Cabinet deliberations confined to those members of a Government who are also members of the Cabinet. It may also be understood as saying something about the rights to access information contained in a document. But the Government of a day is not a legal entity capable of having property rights in the thing containing the information.
157 Secondly, according to the Cabinet Handbook, access to information contained in documents held by the Cabinet Division depends upon the permission of the leader of the particular Government to which they relate. They are issued on a "need-to-know basis". There is nothing unusual or problematic about that arrangement, considered apart from the terms of the FOI Act. However, it does presuppose that the document concerned does in fact have the status of a Cabinet document. That supposition may be wrong.
158 Thirdly, the Cabinet Handbook is silent on the question of what is to happen to documents that are subject to a request under the FOI Act. As such, it is intended to be read (and must in any event be read) subject to obligations owed under any law.
159 Fourthly, and relatedly, it is not at all apparent that the Cabinet Handbook has legal status in and of itself. Rather, it is the practical machinery for protecting a form of confidentiality that can be (but may not be) legally recognised in a particular case.
160 Fifthly, the transfer of a document into the custody of the Secretary does not of itself make it a Cabinet document for the purposes of the Cabinet Handbook. Accordingly, concepts such as possession and entitlement to access under the FOI Act cannot be determined as if conditions contained in the Cabinet Handbook had any status in law so as to affect property rights in the document or the right to information contained it. If a document is not properly
